An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-227


Filed: 7 February 2006


v .                             Pitt County
                                No. 03 CRS 57879

    Appeal by defendant from judgments entered 15 September 2004 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 9 January 2006.

    Roy A. Cooper, III, Attorney General, by Patricia A. Duffy, Assistant Attorney General, for the State.

    Thomas E. Fulghum for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant appeals his conviction for providing fictitious information to an officer. The facts pertinent to this issue are as follows: On 22 June 2003, Officer Vicky Lynn Kelley stopped defendant at a license checkpoint. When she requested his license, he said that he did not have it with him, and she noticed a strong odor of alcohol. She asked him for his name and date of birth, to which he responded that he was David Cannon, born on 9 July 1950. Defendant was unable to perform a field sobriety test, was arrested for driving while impaired and subsequently “blew” a 0.17, more than twice the legal limit of 0.08, on the intoxilyzer. At trial, Officer Kelly positively identified defendant as the person she arrested that evening.     Upon arrival at the station, Officer Kelley attempted to identify David Cannon's driving record, but was unable to find a David Cannon born on 9 July 1950. She queried defendant about his age, and he responded that he was fifty years old. Officer Kelley told defendant that he could not be 50 years old and be born in 1950. He then told her he was born in 1952. Officer Kelley was then able to retrieve David V. Cannon's license from the department of motor vehicles registry and determined that it was revoked.
    Officer Kelley further testified that the bondsman who bonded defendant out of jail informed her that he was not David Cannon, but in fact Ricky Heath. She retrieved pictures of both David Cannon and Ricky Heath and confirmed that she had arrested Ricky Heath. Defendant was indicted for habitual driving while impaired, driving while impaired on or about 22 June 2003, driving while his license was revoked, and providing fictitious information to an officer. Defendant stipulated that his license was revoked on 22 June 2003. The State presented evidence showing that defendant pled guilty to driving while impaired on 14 October 1998, 10 February 1999, and 7 November 2001. Defendant presented no evidence.
    The jury found defendant guilty of habitual driving while impaired, driving while his driver's license was revoked, and giving fictitious information to an officer. Judgment was arrested on the driving while impaired charge. Defendant was sentenced to consecutive sentences of 25 to 30 months for habitual impaired driving, 120 days for driving while license was revoked, and 60days for providing fictitious information to an officer. Defendant appeals.

    The record on appeal contains twelve assignments of error, only one of which has been brought forward in defendant's brief. The remaining assignments of error are deemed abandoned. N.C. R. App. P. 28. Defendant contends that his conviction for fictitious information was erroneous because the indictment failed to state the essential elements of the crime. The “failure of a criminal pleading to charge the essential elements of the stated offense is an error of law which may be corrected upon appellate review even though no corresponding objection, exception or motion was made in the trial division.” State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981); N.C. Gen. Stat. § 15A-952(d) (2005) (“Motions concerning . . . the failure of the pleading to charge an offense may be made at any time.”). Section 20-29 of our General Statutes states, in pertinent part:
        Any person operating or in charge of a motor vehicle, when requested by an officer in uniform, . . . who shall give a false name or address, or who shall refuse, on demand of such officer or such other person, to produce his license . . . shall be guilty of a Class 2 misdemeanor.

N.C. Gen. Stat. § 20-29 (2005). The indictment here stated that defendant:
        unlawfully and willfully did give fictitious information to an officer by giving his name as David Vernon Cannon with a date of birth of 1950 to avoid an additional conviction in the name of the defendant, in violation of G.S. 20-29.
The indictment failed to state that defendant was operating a motor vehicle when he provided fictitious information to the police officer. Because it “does not contain this essential averment[,] [i]t does not charge a criminal offense,” State v. Danziger, 245 N.C. 406, 407, 95 S.E.2d 862, 862 (1957); therefore, we must vacate the conviction for providing fictitious information to an officer.     Habitual Impaired Driving - No error.
    Driving While License Revoked - No error.
    Providing Fictitious Information to an Officer - Vacated.
    Judges McGEE and STEELMAN concur.
    Report per Rule 30(e).

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